Case summaries and commentary on recently decided criminal law cases in the Third Circuit provided by Federal Defenders and CJA Panel Attorneys.

Monday, January 07, 2013

Under the Modified Categorical Approach, Sentencing Courts May Only Consider the Charging Documents and the Jury Instructions When Determining if a State Offense is a Predicate Offense Under ACCA.

After pleading guilty to violating 18 U.S.C. § 922(g)(1), Dantey Tucker was sentenced to fifteen years imprisonment based on the sentencing enhancement set forth in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). His classification as an armed career offender was based on one prior state conviction for a violent felony, a conviction for possession of a controlled substance with intent to deliver in violation of 35 PA. STAT. ANN. § 780-113(a)(30), and a conviction for conspiracy to sell drugs in violation of 18 PA. CONST. ANN. §903. Only the district court’s classification of the prior drug offenses as serious drug offenses was in dispute at sentencing and on appeal. Specifically, Tucker argued that the district court erred in finding that his two state drug convictions were serious drug offenses within the meaning of the ACCA. Applying the “modified categorical approach,” in United States v. Tucker, No 12-1482 (3d Cir., December 21, 2012), the Third Circuit held that the conspiracy charge was not a serious drug offense, but the possession conviction was a serious drug offense because it was based on a finding that the offense involved cocaine.

At sentencing, Tucker had argued neither of his prior drug convictions required a factual finding as to what type of drug was involved and therefore did not trigger the ACCA enhancement. Since the language of the applicable state statutes was broad and not equivalent to a federal predicate offense, Supreme Court precedent -Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005)- required the sentencing court to apply the modified categorical approach. This approach allows for a limited inquiry into the elements of an offense that a jury is required to find in order to convict a defendant. In conducting such a review, courts are limited to looking at the charging documents and the jury instructions.

The charging document for Tucker’s conviction for possession with intent to distribute (§ 780-113(a)(30)) explicitly listed cocaine as the controlled substance. The conviction specifically required a finding that he possessed cocaine. Therefore this prior qualified as a serious drug offense. Also, since the district court’s finding was consistent with Supreme Court precedent and the modified categorical approach, the Third Circuit rejected Tucker’s argument that the district court’s determination that this was serious drug offense conflicted with the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), and the Sixth Amendment.

However, it was unclear if Tucker’s conviction for conspiracy to sell drugs (§903) was for conspiracy to sell cocaine (which would trigger the ACCA) or conspiracy to sell marijuana (which would not trigger the enhancement). Applying the modified categorical approach, the Third Circuit reversed the sentencing court’s finding that this prior conviction qualified as a serious drug offense, because neither the Bill of Information nor the jury instructions required the jury to find that the offense involved a conspiracy to sell cocaine in order to convict Tucker. In fact, the type of drug was never specified in the charging document or jury instructions which simply referred to a “conspiracy to sell drugs.” The appellate court further found that the district court erred in considering transcripts from the charging conference and sentence hearing, which fell outside what the court was allowed to consider under Taylor. Also, although the circuit court agreed with the government that the jury most likely convicted Tucker for conspiracy to sell cocaine rather than marijuana, the modified categorical approach does not allow for an enhancement based on speculation. As such, this prior was not a predicate offense for ACCA enhancement and the case was remanded for sentencing.